2015731 (REFUGEE)
[2024] ARTA 195
•14 November 2024
2015731 (REFUGEE) [2024] ARTA 195 (14 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs
Tribunal Number: 2015731
Tribunal:General Member J Le Vay
Date:14 November 2024
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 14 November 2024 at 10:34am
CATCHWORDS
REFUGEE – Protection Visa – China – corruption in China – engaged in some low-level and infrequent commentary generally critical of the Chinese government – previous dispute with the village head – has not expressed an ongoing fear of the village head – applicant had provided inconsistent information – applicant does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 September 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant, who is a national of China, applied for the visa on 29 September 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 21 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was not represented in relation to the review.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Background
In his protection visa application form, the applicant provided the following information:
· He was born in [year] in [Town 1] , Shijiazhuang City, Hebei Province, China.
· He has never married.
· His mother is in Zhumadian City, Henan Province, China.
· His brother is in [Town 1].
· He speaks, reads, and writes Mandarin.
· He is an atheist and belongs to the Han ethnic group.
· He attended school in [Town 1] from 2001 to 2013. He then attended a course [at] [a] College until July 2017.
· He lived in in [Town 1] until 2013 when he moved to another town in Shijiazhuang City.
· He was never employed in China.
· He departed China on [date] September 2017, entering Australia the next day as a student on his Chinese passport.
· He did not travel to any countries in the 30 years preceding the protection visa application.
Evidence before the Department
Protection visa application
The applicant’s written claims for protection are set out in an unsigned and undated written statement attached to the protection visa application and are summarised as follows:
· [Mr A] became the head of the applicant’s village (village head) in September 2016. The village head used corrupt methods to secure office.
· The village head sold the village land to his brother-in-law at a very low price.
· The applicant’s father applied to the village committee to build a house on his land. The village head sought benefits in return for granting the application, which the applicant’s father refused to give.
· In February 2017, the applicant’s father and other villagers attended [Town 1] town government to report the village head’s corrupt conduct. The town government indicated it would consider the matter. Subsequently, one night, several ‘triad guys’ broke into the applicant’s family home and beat his parents. They also threatened to kill his father if he pursued his complaint. His mother called the police, but they just asked a few questions and left. The villagers who had joined the complaint were also targeted. The applicant’s father and other villagers reported the matter to the [District] Government but received no reply.
· On 15 May [2017], the applicant went with his father to Shijiazhuang city government to lodge a petition. At the entrance to the government building they were stopped by police from [Town 1] who handcuffed them and detained them at the police station in [Town 1]. They were whipped and the applicant was beaten so that they would abandon the complaint, which his father agreed to do.
· The applicant however was so enraged that in June [2017] he criticised the government in an online post, which was shortly deleted.
· On 23 June [2017], the applicant was arrested by the police from [the] District Public Security Bureau, who detained him for four days, beat him, and forced him to post a statement online that his previous post was a rumour.
· The applicant came to Australia to start a new life.
The applicant provided a copy of his Chinese passport, which was issued on [date] 2016 in Hebei. It confirms the applicant’s nationality, name, and date and place of birth.
The applicant indicated that he received no assistance in completing the protection visa application.
In a letter dated 27 August 2020 the delegate invited the applicant to provide further information to support the applicant’s claims, particularly:
· further information about the village head;
· copies of the application (for permission to develop the land) which was rejected;
· evidence of the complaint or petition that was lodged with Chinese authorities;
· evidence of the online post and criticisms he made of the government;
· evidence of the injuries he and his father received, and evidence of any medical treatment received;
· copies of any arrest warrants/charge sheets he may have received;
· information about his parents and brother since he left China and an explanation for omitting his father in the protection visa application form;
· an explanation for believing he will be targeted in China despite removing his online post/recanting his post;
· identification of who he fears in China and of what he fears will happen on return to China.
In a separate letter also dated 27 August 2020 the delegate invited the applicant to comment on adverse information, which may affect his credibility, as follows:
· In his protection visa application, the applicant claimed that he had not travelled anywhere in the previous 30 years, and the highest level of schooling he completed was a course at a vocational college in China. However, in this student visa application lodged on 21 August 2017, he claimed to have travelled to and studied in [Country 1] and to have completed a bachelor’s [degree].
· On 23 March 2018, the applicant’s student visa was cancelled on the basis that he had provided a bogus Chinese national identity card when he applied for the student visa.
The applicant did not respond to either letter.
The applicant was not offered an interview by the delegate.
The delegate’s decision
In a letter dated 19 October 2020 the delegate refused the protection visa application because of a lack of supporting evidence. The applicant’s ability to leave China was also relied on to indicate that the applicant was not a person of adverse interest to the Chinese authorities when he left. The delegate therefore did not accept the applicant’s protection claims and did not find that the applicant is a refugee or owed complementary protection.
The delegate accepted the applicant’s identity claims. The Tribunal is similarly satisfied as to the applicant’s identity and assesses the country of reference as China.
Evidence before the Tribunal
Application for review
The applicant lodged the review application on 23 October 2020. He provided a copy of the delegate’s decision.
On 5 August 2024, the AAT requested by email that the applicant complete a pre-hearing information form. On 23 September 2024 the AAT invited the applicant to attend the hearing and asked him to complete a response to the hearing invitation. No response was received from the applicant to either request.
On 20 October 2024, the Tribunal received an email from the applicant in which he confirmed that he would attend the hearing. No other information was received.
At the hearing the applicant presented his original Chinese passport, a copy of which had been presented to the Department. It showed no immigration stamps other than an exit stamp from China dated [date] September 2017. The applicant said that this was his first (and only) passport.
Hearing
At the hearing the applicant confirmed his personal details and told the Tribunal that he has been working [for] six years.
The Tribunal asked him about the completion of the protection visa application. The applicant said that a friend completed it on his behalf, using information that the applicant gave to him. His friend then told the applicant what information was in the application, and he has checked it since. He confirmed that the information is correct and did not wish to make any changes. He also recalled preparing the written statement. The Tribunal noted that his application indicates that he did not receive any assistance.
The applicant made corrections to his education/employment history: he completed his vocational course in 2015, not 2017. (The applicant however also told the Tribunal that he graduated when he was aged [age] years, which would be 2016/2017.) He then worked as a [occupation] until he left China. He also stated that he did not change address in 2013 – he remained in the family home until he left China.
The applicant said that his parents and brother now live in Zhengzhou, Henan. His parents moved to Zhumadian, Henan, shortly after the applicant left China, which is his mother’s hometown. They left [Town 1] because of the difficulties arising from the village head there. They moved again in 2017 to Zhengzhou where his father found employment at a coalmine, work which he continues to do. They rent a home there and have been joined by the applicant’s brother who was previously working in Jinan, Shandong. The Tribunal noted that the applicant had indicated in the protection visa application that his brother was in [Town 1], which the applicant corrected.
The applicant’s parents have not returned to [Town 1]. The applicant said that the family home in [Town 1] is vacant. It has little value.
The applicant said that he applied for his passport in 2016 because he wanted to leave the village – because the village head was corrupt.
The Tribunal asked the applicant about the student visa application. He told the Tribunal that an agency assisted him, and that the only documents he provided to it were his college certificate and his passport. He did not provide a national identity card. He only learned that an identity card had been submitted with the student visa application when his student visa was cancelled. The applicant said that he has never lived or studied in [Country 1] and that he does not have a [degree]. He did not complain to the agency about the incorrect information /false documentation in his application because it was ‘unnecessary’: he was already outside China.
The applicant told the Tribunal that he came to Australia because of the corruption in China. He described in terms generally consistent with his written statement: the identity of the village head; the refusal of the village head to grant his father’s application to build a house on his land; the complaint to the town government; and the subsequent visit to their home by men. He said that his father owned about 300 square metres, which is still undeveloped.
The applicant said that in February 2017 he accompanied his father and other villagers to the offices of the town government, and that he along with his parents were consequently beaten. He said that four men – the village head was not among them – forced their way into their home and used metal bars and leather belts to beat them. They were bruised but did not sustain any other injuries and did not receive medical treatment. He said that they did not dare call the police. He thought that his home was targeted in May 2017.
The applicant said that he went with his father and three villagers – he believes on 23 June 2017 – to the offices of the city government to pursue the complaint. He named the three villagers by their surnames. He said that they travelled by bus and on arrival they were met by the village head and police officers from [Town 1], who arrested and handcuffed them and took them to the police station in [Town 1] where they were held overnight. He did not know how the village head knew to lie in wait for them. He said that they were released from the police station on the condition that they drop the matter, which they agreed to. The Tribunal asked the applicant how they were treated at the police station – he replied, ‘nothing special’. The Tribunal pointed out that in his written statement he claimed that they were whipped, and he was beaten. The applicant replied that at most he was kicked a few times – not whipped – and that his father was slapped in the face.
The Tribunal asked if there were any other incidents following their release and prior to his departure from China – a period of about four months. He replied that there were not – they dared not continue the petition – they stayed at home and behaved themselves. The Tribunal asked, if that were the case, why he left China. He replied that he feared that the village head would seek revenge. The Tribunal said in response that there was nothing to indicate that the village head would do this – nothing more had happened on the applicant’s account to the applicant since his release from the police station. The applicant also said that that there were no further incidents that led to his parents’ departure from [Town 1].
The Tribunal pointed out that in his written statement the applicant claimed to have posted online criticism which led to his arrest and detention for four days on 23 June 2017 – matters which he had omitted to raise with the Tribunal. The applicant confirmed that he posted the criticism online – he said that he did this on [social media] and that he accused the village head of being corrupt and colluding with government officials. He said that the post was quickly deleted – he did not know how. He does not have a copy of it. The Tribunal asked the applicant why he posted criticism publicly if he had agreed not to pursue the matter. He replied that he wanted the village head to lose office. He said that consequently – in June – some men who he had never seen before again came to his home and beat him and his parents with a leather whip, causing him minor injuries. The Tribunal noted that the applicant had earlier in the hearing said that there were no further incidents after his release from the police station. The applicant did not comment. The Tribunal pointed out that he had claimed in his written statement to have been detained for four days. The applicant replied that this was not the case.
The applicant said that old school friends in [Town 1] have told him that [Mr A] is still head of the village.
The Tribunal asked the applicant why he did not move to another part of China, just as his parents and brother have now done. He replied that everywhere is the same in China, and that a friend suggested to him that he go abroad.
The applicant said that he would not return to [Town 1] if he had to return to China – he would join his parents and brother in Zhengzhou. The Tribunal asked him what he feared would happen there. He replied that he cannot change his hukou – household registration – and so would not receive government benefits. The Tribunal indicated that according to country information it is only difficult to obtain a hukou in China’s major cities. The applicant said that he would have to return to [Town 1] to change his hukou and that it also necessary to buy property at the new location. The Tribunal indicated that his parents and brother – who the applicant said at the start of the hearing are well – did not seem to be having any difficulties as a result of moving away from [Town 1]. The applicant had no further comment on the matter.
The applicant also said that he is unable to return to China because of the corruption there. The Tribunal asked the applicant how any corruption would affect him personally. He replied that if he behaves, then ‘things will be okay’.
The applicant said that he would not have freedom of speech in China. The Tribunal asked him how he had exercised this freedom in Australia. He replied that he had complained about Chinese officials online – by commenting on someone else’s post on [social media] and in exchanges on [social media]. He thought the last time this occurred was several months ago. The Tribunal noted the absence of any evidence of these exchanges and indicated that even if he had commented in this way, it may not find that he has a profile that would attract the adverse attention of the Chinese authorities; and that if he were to continue posting comments online in this way, country information indicates that this would be tolerated.
The Tribunal indicated that it was concerned about the inconsistencies in the applicant’s evidence. The applicant said the friend who completed the protection visa application on his behalf would know better what was stated in it.
The Tribunal indicated that even if it accepts the applicant’s claims, and even if he were to return to [Town 1] (which he has said he would not), there is nothing to suggest that there is any ongoing risk of harm to him. The applicant’s father has moved away and has not pursued the complaint. There were no further incidents that occurred to the applicant or his father before they moved away. The applicant replied that he understood the Tribunal’s point and had no other comment. The applicant confirmed that he had no difficulty leaving the country.
The Tribunal asked the applicant if he would resume the complaint on return to China. He replied that he ‘thinks’ he would. The Tribunal indicated that it may not accept this: it is not a position that the applicant appears to be committed to, and a position he appears to have taken only because the Tribunal asked him; and he did not pursue the matter in China – preferring instead to leave the country – and had not pursued it from Australia. The applicant did not comment.
Assessment
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.
The courts have made it clear for some time that it is important that the Tribunal is sensitive to the difficulties faced by asylum seekers and that it adopts a reasonable approach in making its findings of credibility.[1] Further, in assessing the credibility of the applicants’ claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[2]
[1] Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Guo Wei Rong and Pan Run Juan v Minister for Immigration and Ethnic Affairs and McIllhatton (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
[2] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[3] MIMA v Rajalingam (1999) 93 FCR 220.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
However, the Tribunal is mindful that legal reasonableness is a requirement of lawful decision making.[5] In this regard, the Tribunal is guided by the courts’ consideration of how credibility findings might be affected by legal unreasonableness.[6]
[5] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 at [4], [80, [89]; Minister for Immigration and Citizenship v Li [2013] HCA 18 at [26], [29], [63], [88].
[6] See for example the observations of the Federal Court on the principles applying to the assessment of credibility in BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 per Flick J.
The Tribunal is concerned that although consistent in some respects the applicant’s evidence was inconsistent in other significant respects:
In his written statement the applicant stated that his father and other villagers attended the offices of the town government in February 2017. However, he told the Tribunal that he accompanied his father.
In his written statement the applicant describes his parents consequently being beaten at home and his mother calling the police. However, the applicant told the Tribunal that he was also beaten on the same occasion, and that his family did not dare call the police.
In his written statement the applicant makes no mention of villagers accompanying him and his father to the offices of the city government, whereas in the hearing he said that three villagers went with them and were detained with them. He also told the Tribunal that he was not mistreated – later amending his evidence to say that he was kicked, and his father slapped – whereas in the written statement he claims they were whipped and beaten. He also stated that this took place on 23 June which is a date given in his written statement for a later incident – he claims in the written statement that the incident took place on 15 May.
In his written statement the applicant claimed that he was arrested, beaten, and detained for four days by the police for posting criticism online, whereas he said in the hearing that he was not detained and that he and his parents were beaten at home by unknown men.
The applicant’s oral evidence to the Tribunal was also in some respects internally inconsistent. The applicant initially said there were no further incidents following his release by the police after his arrest at the city government – that he and his family stayed at home and behaved themselves – and only claimed to have been targeted again for posting criticism online when the omission was pointed out to him by the Tribunal.
Balanced against this is the manner in which the applicant gave his oral evidence, which the Tribunal found generally to be given in a straightforward manner and appeared to be unrehearsed. In some respects, the applicant was quick to correct mistakes he says were made in his written statement, when pointed out to him, in a way which reduced the level of harm he claims to have suffered in China, particularly that he was detained by the police for four days.
Moreover, the Tribunal is mindful of the way in which the protection visa application was completed. The applicant required an interpreter at the hearing and assesses that he could not have completed the protection visa application himself. The Tribunal accepts that the application was completed with the assistance of a friend. The written statement is unsigned. The applicant indicated that he had checked the protection visa application and that the information contained in it is correct but did not volunteer corrections to the protection claims. There remained however certain discrepancies between information in the protection visa application and his oral evidence which were also not corrected, in relation to which the applicant does not appear to have anything to gain e.g., the omission of the applicant’s father from the protection visa application, and the discrepancies relating to the applicant’s employment, education, and residential history. The Tribunal places greater weight on the applicant’s oral evidence than his written evidence. The Tribunal is not prepared to draw an adverse inference from the applicant’s failure to correct his account sooner than he did. There is also the possibility of the applicant conflating events since they are claimed to have occurred some seven years ago.
The applicant’s claims are broadly consistent with country information:
The law provides the right to petition the government for the resolution of grievances, most petitioners presenting their complaints at national and provincial ‘letters and calls’ offices.[7] According to information in 2017 – around the time of the claimed events – while citizens have the right to petition the government about grievances or injustices, in practice petitioners are routinely intercepted in their efforts to reach Beijing, forcefully returned to their hometowns, or extralegally detained in ‘black jails’, psychiatric institutions and other sites where they may be subject to beatings, psychological abuse, or sexual violence.[8]
[7] ‘Country Reports on Human Rights Practices 2016 – China’, United States Department of State, 3 March 2017, Section 2b, p.36
[8] ‘Freedom in the World 2017 – China’, Freedom House, 1 February 2017, Section E ‘Associational and Organizational Rights’
In relation to official corruption, Transparency International estimated 28 per cent of public officials accepted a bribe in 2020. The 2020 US Department of State Human Rights Report notes frequent corruption in court decisions, and areas ‘heavily regulated by the government’ including land-usage rights.[9] Police, including at lower levels, can be investigated for corruption,[10] and arbitrary arrest and detention is commonly reported.[11]
[9] DFAT, DFAT Country Information Report, People’s Republic of China, 22 December 2021, para.2.21
[10] Ibid, para.5.2
[11] Ibid, para.4.8
‘Thugs’, who intimidate protesters, have been used and are allegedly hired by local governments, and DFAT assesses that people who organise or participate in protests over land, local corruption or any other matter critical of the state are subject to a high risk of official discrimination.[12]
[12] Ibid, paras.3.88 to 3.89
In relation to the applicant’s ability to depart the China unhindered, country information indicates that exit and entry is strictly regulated.[13] Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be prevented from leaving the country due to being on an exit control list.[14] However the Tribunal assesses that the applicant’s account does not indicate that he comes within any of the categories of person which would lead to his being placed on an exit control list. According to information from 2017, when the applicant departed China, those routinely prevented from traveling overseas were individuals the government considered potential political threats, including religious leaders, political dissidents, petitioners, and ethnic minorities.[15]
[13] Ibld, para.5.31
[14] Ibld, para.5.32
[15] ‘Country Report on Human Rights Practices 2016 - China (includes Tibet, Hong Kong, and Macau)’, US Department of State, 3 March 2017, Section 2d, p.43
The applicant has not provided the evidence sought by the delegate. He has consistently stated that his online post was deleted. He also said that none of his or his father’s injuries were so serious that they required medical treatment. Further, on his account to the Tribunal he was detained by the police only once – overnight – and the manner in which he claims to have been taken into detention does not appear to be regular such that there would be an arrest warrant or charge sheet. The Tribunal does not find that the absence of evidence of the applicant’s father’s application for permission to develop his land, or of any petition to the government of itself undermines the credibility of the applicant’s claims.
The applicant appeared confident that he had not given to the travel agency in China his national identity card or that he claimed to have lived and studied in [Country 1] or obtained a [degree]. The Tribunal assesses as plausible that false information was provided by the agency to bolster the student visa application – without the applicant’s knowledge – in light of information that corrupt education agents and migration agents in China bring to Australia non-genuine students, and networks of education providers, education agents and migration agents were involved in serious organised crime related to student visas.[16]
[16] E.g. Fake schools, fake students: Criminals make mockery of education visas, 16 May 2023, The Age,
Despite the Tribunal’s concerns – which are not insignificant – it is prepared to give the applicant the benefit of the doubt and accept that the applicant’s father’s sought permission to develop land that he owned; that permission was refused because he did not agree to the village head’s demands; that the applicant and his father pursued a complaint against the village head and the applicant posted a criticism of the village head online; and that he and his parents were consequently beaten at home on two occasions and that he and his father were detained by the police once overnight.
The Tribunal does not accept that the applicant would pursue a complaint against the village head, even if he continues to be the village head, or anyone else, on return to China for reasons given to the applicant. He expressed no intention to pursue the matter on return to China – rather he intends to join his family in Zhengzhou – until the Tribunal asked him if he held such an intention, and only then expressed such an intention in lukewarm terms; neither he nor his father pursued the matter in China, preferring to leave [Town 1]; and he has not pursued the matter from Australia over the last seven years.
The applicant has not provided any evidence of his online commentary in Australia. Nonetheless the Tribunal is prepared to accept that he has engaged in some low-level and infrequent commentary generally critical of the Chinese government.
Does the applicant satisfy the refugee criterion for protection?
The applicant has said that he would not return to [Town 1], rather he would join his parents and brother in Zhengzhou, Henan, where his parents have lived for around seven years. The Tribunal assesses that there is no indication that the applicant would suffer harm there for any of the reasons claimed by him. The Tribunal has accepted that the applicant was previously targeted and harmed because of a complaint against the village head and corrupt practices. However, this was in [Town 1], not Zhengzhou. There is no indication that the applicant would be harmed in Zhengzhou by the village head in [Town 1], even if he continues to be the head of his village or otherwise resident there. The applicant said that his family in Zhengzhou are well. He has not claimed that they are experiencing any ongoing difficulties as a result of the previous dispute with the village head. The applicant himself has not expressed an ongoing fear of the village head.
Even if the applicant were to return to [Town 1], there is no information to indicate that the applicant would be harmed again. The applicant remained in [Town 1] for some months before leaving without any further difficulties – the complaint against the village head having been abandoned. Similarly, the applicant has not indicated that his parents were subject to any further difficulties prior to leaving [Town 1] – after the applicant’s departure from China. A further seven years have passed since the applicant’s departure from China. The Tribunal has not accepted that the applicant would pursue the complaint against the village head or anyone else on return to China.
The applicant stated that he left [Town 1] because of the local corruption there, and that he cannot return to China because of corruption. The Tribunal has acknowledged above corrupt practices in China. This also includes frequent corruption in court decisions, and other government-regulated areas, such as mining and infrastructure development, and reports of bribery in healthcare, for example offering cash for prioritised procedures,[17] although the government takes corruption seriously as a threat to its legitimacy.[18] However the applicant was unable to provide any indication of how such corruption would affect him personally much less cause him serious harm. The applicant himself said that if he behaves then ‘things will be okay’. He has not provided any indication that he would not ‘behave’.
[17] DFAT, DFAT Country Information Report, People’s Republic of China, 22 December 2021, para.2.21
[18] Ibid, para.2.23
In relation to the applicant’s claims that he would not have freedom of speech in China, the Tribunal assesses that he would be able to continue to express himself in China online as he has done so in Australia, that is at a low-level and infrequently, and that by doing so he would not attract the adverse attention of the authorities. DFAT assesses that it is only those people who use an internet platform to mobilise others in relation to politically sensitive issues who face a high risk of official discrimination – small scale discussion of political issues and even criticism is generally tolerated, and the majority of social media users are able to use their platforms without incident.[19]
[19] Ibid, para.3.95
In relation to obtaining a new hukou – a registration with the local government which entitles a resident to use government services such as education or health services in that local government area – DFAT states that the hukou system may limit freedom of movement in practice but that a third of the Chinese population live in a place other than where their residence is registered with a local government.[20] Further reforms in 2019 have made it easier to get a hukou in medium-sized cities (1 to 3 million residents) and removed limits on key population groups, including graduates of universities and vocational colleges.[21] The Tribunal notes that the applicant is a graduate of a vocational college. In addition there is information which post-dates DFAT’s report on China that indicates that Zhengzhou has become the first big Chinese city to end the hukou requirement in an attempt to stabilise the real estate market and attract talents from across the country.[22] The Tribunal has not identified any information to support the applicant’s claim that he would have to return to [Town 1] in order to change his hukou. Even if he were required to do so, the Tribunal has found above that the applicant does not face a real chance of harm there. Nor has the Tribunal located any information to indicate that he can only change his hukou by buying property in the new location. He said that his family are renting in Zhengzhou. In any case the applicant has indicated that his family have lived in Zhengzhou for the last seven years, that his father is working, and that his family is well – whether or not they have successfully changed their hukou – and the Tribunal assesses that the applicant would similarly be able to live in Zhengzhou without difficulty.
[20] Ibid, para.5.24
[21] Ibid, para.5.26
[22] Zhengzhou Becomes First Big City to Scrap ‘Hukou’ Restrictions, Sixth Tone, 15 September 2022,
Taking into account the findings set out above and the country information referred to in this decision, and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to China now or in the reasonably foreseeable future he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. The Tribunal therefore finds that the applicant does not have a well-founded fear of persecution.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion, for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm in China.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date of hearing: 21 October 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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